The Tenant

Responsibilities:

Landlords cannot expect a tenant to maintain a property in the same pristine condition it was at the start (assuming it was in pristine condition). Neither should they interfere with the tenants use of a property by insisting on excessive cleaning and dusting during the tenancy, for example. Also landlords cannot normally make any claim against a tenant for damage or repairs caused by normal use of the property or ‘fair wear and tear,’ which would depend upon whom the house was being rented to, e.g. a difference between a young professional couple and a group of students. However the cost of other repairs and replacement of broken items can normally be taken from the tenant’s damage deposit.

If a tenant were to cause more serious damage a landlord may consider evicting this tenant. This is generally done, short-term, by serving a ‘section 21 notice’ on the tenant [found in ‘x’ act]. The tenant will not be able to defend these proceedings, but the landlord is required to give the tenant at least two months notice.

It is likely that when you signed your contact, it was probably done so under a private sector tenancy, likely making it an Assured Short hold Tenancy Agreement;

Assured Tenancy Basic Rights:

1. The right to stay in the accommodation until the fixed term ends.
2. The right to have the accommodation kept in a reasonable state of repair
3. The right to carry out minor repairs yourself and the right to deduct the cost of this from your rent.
4. You must take reasonable and responsible care of the property e.g. unblock the sink.
5. You only have to make minor repairs and maintenance if the tenancy agreement states that you must. See ‘repairs’ section of ‘the landlord’ page.

Essentially, the tenant has a responsibility to look after the property in a ‘tenant like manner’. This means he must take care of the property and, for example, ensure that repairs are either dealt with promptly if they are the tenants responsibility, or reported to the landlord promptly if they are the landlords responsibility.

A tenant cannot require a landlord to pay for the repair of something which has been damaged by the tenant himself. A tenant will also be responsible for any additional damage done to a property caused by his failure to report the cause of the problem to the landlord within a reasonable time (assuming it was something it would have been reasonable for him to know about). For example water damage from a leaking roof if the leak is simply ignored and not reported to the landlord.

Withholding Payment of Rent:

If a tenant does not pay his rent it can result in rent arrears and the landlord can seek repossession of rent.

For any other issues concerning rent, for example, inability to pay, please contact us.

Deposits:

Due to the level of disagreement and legal proceedings resulting from disputed deposits, the government have set-up numerous ‘Tenancy Deposit Protection Schemes,’ as of April 2007.

The Scheme is designed to:

1. Get all of your or part of your deposit when you are entitled to it.
2. Resolve disputes easier regarding deposits
3. Make sure landlords and letting agents, who fail to follow the legislation, have to return the deposit, three times over.

The scheme was designed because there was previously no legislation in place to guarantee the return of the deposit.

In 2006 only 70% of deposits were returned in full, 19% were returned in part and 11% were not returned at all.

In the same survey, the reasoning for why the landlord withheld the deposit either in part or full, was broken down as follows;

1. 28% damage to property
2. 34% for cleaning of the property
3. 8% for unpaid rent and bills
4. 30% for other reasons

As a result of this survey it was found that 20% of tenants whose deposits were withheld felt that adequate reasoning had not been given for withdrawal.

The new system works by the landlord paying the deposit into a scheme. All of the information, such as contact details of release and purpose of the deposit, are then sent to you, as well as what to do if a deposit dispute arises. If your landlord didn’t pay your deposit into the agency then you can get the court to make the landlord return it to you or get them to pay it into an assured scheme. This can be done through a court order.

It is important that you and your landlord both understand that the deposit has to be paid into the scheme and it is more important that once you have given the landlord your deposit it is put into the scheme. It may be beneficial to ask for a receipt for your deposit to give confirmation and recognition that a deposit has been paid.

The deposit should equal between one or two months’ rent, which is quite a large amount of money to find.

Technically the deposit belongs to you and should not be kept from you unless the landlord can prove financial loss. Reasonable deductions can be made from your deposit for the following reasons:

1. Damage to the property
2. Unpaid rent
3. Missing items
4. Cleaning after you vacate the premise.

The landlord is required by law to return the security deposit or give a written list of the claimed damage within 30 days of the end of the lease. After 30 days the landlord loses the right to withhold any deposit, and so if it is not returned to you, then you are entitled to take your landlord to court.

If it is agreed that damage has been done and money it is to be taken from your deposit you hold the legal right to ask to see receipts and estimates for the goods that have been replaced; the rates of workmen should not be excessive and should be reasonable. What is reasonable is often seen as what it would cost to replace the goods on a ‘like for like’ basis. Your landlord cannot deduct from your deposit for behaviour such as parties; they can only claim for financial loss they have actually suffered- i.e. damage caused by parties.

If deductions are for repair works which cannot be done immediately an estimate can be sufficient. If, however, you feel the landlord will not do the work that he has deducted for then this can be disputed.

Remember the landlord cannot deduct for fair wear and tear; this is reasonable damage that occurs throughout the course of the tenancy agreement. The length, to which normal wear and tear occurs, is that which is reasonable to the property. For example, a mark on a sofa in a top London flat may be regarded as excessive wear and tear whereas in a student house it is unlikely to be so.

What happens if the landlord does not join a tenancy deposit scheme?

Landlords only need to protect deposits under a tenancy deposit scheme if the tenancy is an assured shorthold tenancy. So with other types of tenancy, e.g. common law tenancies such as where the annual rent is over £25,000, the landlord can hold the deposit without being a member of a scheme, without penalty.

However if a deposit is taken for an assured shorthold tenancy, but is not protected under a scheme, the following apply:

The tenant has the right to go to court to ask for a court order that;  the deposit is to be repaid, the landlord is to arrange for it to be protected under the custodial scheme or the landlord can be ordered to pay him a ‘fine’ of three times the value of the deposit within 14 days

Who gets the interest on the deposit?

The damage deposit is the property of the tenant and in most cases any interest accruing on it belongs to the tenant.

If the damage deposit is being held in a custodial tenancy deposit scheme, then much of the interest will go to the scheme administrator to fund the costs of the scheme as a whole, although there may be a small amount payable. If so this interest will normally be paid to the person who receives the damage deposit, or divided up in the same proportion as the damage deposit.

If the deposit is held by the landlord or letting agent under an ‘insurance based’ scheme then any interest accruing on it should be paid to the tenant along with the deposit at the end of the tenancy, unless the tenancy agreement provides otherwise.

What if the landlords claim for damage exceeds the damage deposit?

If the landlord wishes to make a claim against the tenant for damages over and above the damage deposit, this will have to be brought in the County Court. This type of claim is known as a claim for dilapidations.

For this sort of claim it will normally be essential for the landlord to have a good inventory, ideally one which provides details about the condition of the property and its contents, rather than just a list of furniture. As it will be the landlord bringing the claim, he will normally be the one who has to prove to the court that the damage was caused by you, and that the sum he is claiming is reasonable.

Here are a few points on dilapidations claims:

1. The landlord cannot claim against you for items which were damaged before you moved into the property or after you moved out. If you challenge him, he will have to prove that the damage was done during the period of your tenancy.
2. If the landlord did his final check several weeks after you left, it is open to you to argue that the damage was not done by you
3. The landlord cannot claim for damage due to ‘fair wear and tear’
4. There is a technical rule (in section 18(1) of the Landlord and Tenant Act 1927) which says that the landlord cannot claim more than the diminution caused to his reversion (i.e. the value of the property when he regains possession) by the state of the premises at the end of the tenancy. So if the property should have been worth £100,000 when he got it back but due to the damage to the property done by the tenants it was actually worth £70,000, he will not be entitled to claim more than £30,000 from the tenants. Note that the rule does not include damage to the property contents, just to the property itself.
5. If the landlord has had repair work done the court will normally accept the invoices as being evidence of the value of the damage to the landlords reversion, provided it was reasonable for him to do the work and the sums charged were reasonable. .
6. If the landlord has not had any repair work done, he may be in difficulties in proving his case. If he has no invoices or estimates for the proposed work, the court may dismiss his claim
7. Sometimes landlords will also seek to claim for rent lost as a result of having to carry out the repair work. However to claim this he will have to establish how long it would reasonably have taken him to let the property if it had been in a proper condition, and then show that the works done extended this period.
8. You may be entitled to ask the court to reduce any sum awarded to reflect ‘betterment’ i.e. the fact that after the words are done the landlord will be getting back a property in a better condition than he was entitled to expect.

If your landlord makes a claim against you for dilapidations, particularly if it is a substantial claim, then you should seek legal advice from a solicitor.